State v. Rogers, 4 Div. 735.

• Decision Date: 21 April 1942
• Docket Number: 4 Div. 735.
• Citation: 9 So.2d 758,30 Ala.App. 515
• Parties: STATE v. ROGERS.
• Court: Alabama Court of Appeals

9 So.2d 758

30 Ala.App. 515

STATE v. ROGERS.

4 Div. 735.

Alabama Court of Appeals

April 21, 1942

Rehearing Denied May 26, 1942.

Appeal from Probate Court, Houston County; S.P Poyner, Judge.

Thos S. Lawson, Atty. Gen., Jas. F. Matthews, Asst. Atty. Gen and W.C. Farmer, Deputy Sol., of Dothan, for appellant.

W. Perry Calhoun and L.A. Farmer, both of Dothan, for appellee.

RICE, Judge.

This is an appeal by the State of Alabama from an order made by Hon S.P. Poyner, Judge of the Probate Court of Houston County, on March 17, 1942, discharging from custody the appellee, Joe Rogers, alias Joe Smith, in a habeas corpus proceeding. From the order aforesaid, and the certificate of the judge on page 8 of the transcript filed in this Court, upon the appeal, it appears that the hearing was upon appellee's petition and the return of the Sheriff of Houston County thereto, to which was attached a warrant issued by Hon. Frank M. Dixon, Governor of Alabama, on February 26, 1942, for the arrest of petitioner or appellee, as a fugitive from justice.

This extradition warrant was issued upon a requisition dated February 24, 1942, by the Governor of Georgia. From the extradition warrant it sufficiently appears that petitioner or appellee had previously been indicted in Georgia for a crime, therein referred to as gaming, that a duly certified copy of the indictment accompanied the requisition, and that petitioner or appellee had fled from Georgia, and taken refuge in Alabama.

It is also reasonably clear and in the absence of any showing to the contrary may be taken as true, that no evidence was introduced at the hearing other than the Sheriff's return and the Governor's extradition warrant aforesaid. Thus on page 8 of the record the Judge of Probate certifies that the transcript filed upon this appeal, consisting of 8 pages, contains "a true and complete copy of the record and proceedings" in this cause; and in the order and judgment of the court, from which this appeal is prosecuted, it is expressly recited, in substance, that the hearing was upon appellee's petition for the writ of habeas corpus, the return thereto of the Sheriff, and the Governor's extradition warrant aforesaid. There is no recital nor anything otherwise in said order or in the transcript or in the certificate of the judge, aforementioned, to indicate that any evidence whatever was offered at the hearing in behalf of appellee, or that there was any evidence for the State otherwise than as already stated.

In view therefore of the well-known presumption that public officers, including, of course, judicial officers, have performed their duties as prescribed by law in the absence of any showing to the contrary, we must assume for the purposes of this appeal that the hearing was confined to the evidence above stated.

This is further indicated by the recitals in the order of the Probate Judge that the State did not make out a prima facie case. There is no point therefore, as we see it, in the contention of the appellee that the certificate of the Judge is defective for failure to recite that the transcript contains a statement of the evidence. Evidently no evidence was before the Court otherwise than as already shown and a certificate by the Judge that the transcript contained a statement of the evidence would seem to be entirely superfluous.

It is contended by appellee that the Governor's extradition warrant was not of itself sufficient authority for holding petitioner in custody and that in addition to the warrant the State, in order to make out a prima facie case should have put in evidence also the requisition from Georgia and the certified copy of the indictment thereto attached as recited in the Governor's warrant showing the charge of crime in Georgia. The contention seems to be based on a misconstruction or misunderstanding of the language used in some of the former opinions of this Court and of the Supreme Court. See Barriere v. State, 142 Ala. 72, 39 So. 55; State v. Parrish, Ala.Sup., 5 So.2d 828; and other cases cited therein.

As we see it the language quoted in appellee's brief from various decisions of the appellate courts of this State is not to be construed as requiring the introduction in evidence of the requisition and indictment or affidavit before a magistrate from the demanding state in addition to the extradition warrant issued in this State, provided the requisite jurisdictional facts sufficiently appear by recital in the extradition warrant. These facts, of course, are such as are required by the extradition statute to be recited. Code 1940, Title 15, §§ 50, 52.

In Thacker v. State, 20 Ala.App. 302, 101 So. 636, 637, certiorari denied Ex parte Thacker, 212 Ala. 3, 101 So. 638, it was said: "The state introduced on the trial the warrant issued by the Governor of Alabama, together with the return of the sheriff of Cullman county. Insistence was made that this evidence did not make out a prima facie case for the state. The return of the sheriff rests upon the sufficiency of the warrant of the Governor, which recites the jurisdictional facts which the law requires the Governor to find before issuing his warrant. To this end it was within the province of the Governor to require the production of satisfactory evidence of the existence of these facts. Being a matter of official duty, the presumption will be indulged, in the absence of proof to the contrary, that this duty was performed, and therefore the recitals in the warrant as to these jurisdictional facts are prima facie evidence of such facts. In the case of Pool v. State, 16 Ala.App. 410, 78 So. 407, will be found a correct statement of the rule and the authorities to sustain the ruling. See, also, Singleton v. State, 144 Ala. 104, 42 So. 23."

It was also insisted by appellee that the recital of the charge of crime...